Foreign Investors: Guide to EB-5 / E-2

Navigating the EB-5 / E-2 Visa

Dear Foreign Investor,

If you are considering spending considerable time in the United States, the U.S. Department of Homeland Security’s Citizenship and Immigration Services (USCIS) does encourage foreign visitation and foreign investment, but strict rules and regulations are imposed which vary by country.

This article offers an informal overview of the EB-5 Foreign Investor Visa application process, along with the general supplemental requirements, the E-2 Treaty Investor Visa application process, and a list of the current countries and territories with U.S. treaties for the E-2 Visa. If you are considering applying for the EB-5 or E-2 Visa, it is a good idea to speak with an experienced U.S. immigration attorney to discuss your options.

Q: What is the EB-5 Visa?

A: The EB-5 U.S. Immigrant Investor Program was established under the federal Immigration and Nationalty Act. 8 U.S.C. section 1153 (b)(5). The program allows foreign investors the (benefit) of permanent residency in the United States in exchange for an investment of at least $500,000 in a targeted employment area (TEA), or a minimum investment of $1 million in a non-targeted area, and employing at least 10 full-time U.S. workers.

Q: How does the foreign investor apply for the EB-5 Visa?

A: First, the investor may elect to apply for a Direct Investment, such as a hotel, restaurant, office building, retail center, or a Regional Center Investment. The vast majority of EB-5 immigration is through government-approved multi-million dollar regional U.S. centers managed by third party developers; investors of this type are generally limited to advisory roles.

Second, the investor will submit either the I-924 application (based on a hypothetical project) or the I-526 (shovel-ready) application. Both applications require several additional documents, to include:

A: If the I-526 application is approved, the investor will receive a two year conditional residence. Prior to the expiration of the temporary residency, the foreign investor must file an I-829 application, verifying the requisite funds were invested in the job-creating business. Upon approval, the investor may be granted permanent residency.

Q: What about the investor’s spouse and children, do they get visas too?

A: The EB-5 Program allows the approved foreign investor’s spouse and unmarried children, under the age of 21, to receive green cards also.

Q: What is an E-2 Visa?

A: The E-2 Treaty Investor Visa allows a foreign national of a country which the U.S. maintains a commerce and transportation treaty with to start a business and live in the United States on renewable five year visas. The initial visa may be granted for two years.

Q: What are the requirements for the E-2 Visa?

A: Unlike the EB-5 Visa, the E-2 Visa requirements are much less stringent. The treaty investor must own at least 50% of the enterprise, make a substantial investment in the new business (relative to the startup costs), and be capable of earning more than just marginal profits.

Q: Does the E-2 Visa investor have to personally work in the business?

A: No. The treaty investor may elect to personally work in the business or contract out management of the enterprise.

Q: Will the treaty investor’s spouse and children qualify for visas also?

A: Yes. The spouse and unmarried children, under the age of 21, are eligible for residency. However, E-2 spouses desiring to work in the United States must request a work permit. When the children get married or reach the age of 21, their E-2 visa status will expire and they will be required to return to their home country. However, they may apply for other types of visas, or possible citizenship depending on each individual’s situation.

In closing, while the requirements of the USCIS may seem a bit daunting, consulting with an experienced U.S. immigration attorney can alleviate many of the foreign investor’s concerns and help to facilitate the process.

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